(1) Today, the Supreme Court denied cert in Progress Energy v. Taylor, No. 07-539, from the Fourth Circuit, which raised the question of whether a settlement or severance agreement can waive the former employee's right to bring FMLA claims. Most courts had allowed such agreements, which is also the position of the Dept. of Labor. However, the Fourth Circuit found that such waivers could not be included in severance agreements. This case arose when the employee signed a severance agreement, but then tried to sue her former employer on an FMLA claim. The question presented is: "Whether the court of appeals erred in holding, in conflict with the Fifth Circuit and the formal position of the U.S. Department of Labor, that a Department of Labor regulation, 29 C.F.R. 825.220(d), unambiguously and validly precludes the private settlement or release of claims under the Family and Medical Leave Act of 1993, 29 U.S.C. 2601 et seq." Thus, at least in the Fourth Circuit, it may remain difficult to negotiate severance or settlement agreements if there is any possibility that the employee might bring an FMLA claim down the road. (2) The Supreme Court did grant cert in a Section 1983 case brought by a former detainee in New York, Ashcroft v. Iqbal, No. 07-1015. The Second Circuit had ruled in the detainee's favor - he alleged that he was mistreated while in detention, and essentially sued all the way up the DOJ hierarchy, including then-AG Ashcroft and FBI Director Mueller. Presumably the Supreme Court will focus on whether senior officers who were not directly involved with the mistreatment and did not know of it at the time, but who either promulgated the policies that allowed the mistreatment or failed to ensure that there were policies to prevent the mistreatment, can be held liable. This case may have ramifications for other types of Section 1983 claims that seek to hold senior officers liable in their personal capacities, not just in their official capacity as head of the agency. The Solicitor General represents the petitioners, and Elizabeth Koob of New York City represents Mr. Iqbal. The questions presented are: "1. Whether a conclusory allegation that a cabinet-level officer or other high-ranking official knew of, condoned, or agreed to subject a plaintiff to allegedly unconstitutional acts purportedly committed by subordinate officials is sufficient to state individual-capacity claims against those officials under Bivens." "2. Whether a cabinet-level officer or other high-ranking official may be held personally liable for the allegedly unconstitutional acts of subordinate officials on the ground that, as high-level supervisors, they had constructive notice of the discrimination allegedly carried out by such subordinate officials." (3) The Supreme Court also granted cert in another Section 1983 case, brought in forma pauperis, Haywood v. Drown, No. 07-10374, from the New York Court of Appeals, which addresses this question: "Whether a state's withdrawal of jurisdiction over certain damages against state corrections employees - from state courts of general jurisdiction - may be constitutionally applied to exclude federal claims under Section 1983 when, as here, the state legislature withdrew jurisdiction because it concluded that permitting such lawsuits is bad policy." The plaintiff-petitioner (Haywood) is represented by the Prisoner Legal Services (NY) and the Dechert law firm. This case may also have the potential to narrow the scope of Section 1983 claims, unless the Supreme Court rejects the attempts by state legislatures/courts to use state laws to eliminate recovery under federal statutes, which is an interesting federalism issue. Alan R. Kabat (Bernabei & Wachtel, PLLC)
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